MEDICAL MARIJUANA COMES TO ILLINOIS
By: Amy L. Garland
On January 1, 2014, Illinois passed the Compassionate Use of Medical Cannabis Pilot Program Act (Medical Marijuana Program). It is said to be one of the strictest medical marijuana laws passed in this country. The pilot program will conclude at the end of 2017, unless lawmakers decide to extend it. Illinois will have sixty (60) dispensaries and twenty-one (21) cultivation centers for marijuana growers. People who want to grow or sell marijuana will have to pay a non-refundable application fee of $25,000.00 for a cultivation center and $5,000.00 for a dispensary. Cultivation centers will also pay a 7% privilege tax on the sale price per ounce of marijuana. Consumption will likely be available in early 2015.
There are four (4) Illinois agencies regulating and creating rules for the pilot program. The Illinois Department of Financial and Professional Regulation (IDFPR) will monitor the dispensing of the drug and monitor the doctors authorized to dispense the drug. The Illinois Department of Agriculture will regulate the growing of the marijuana. The Illinois Department of Public Health (IDPH) will enroll patients and certify physicians, and the Illinois Department of Revenue will oversee the revenue and taxation.
It is not yet known how many patients will participate, but it is estimated there will be at least 100,000 to 200,000 patients eligible, based on their medical conditions. Patients who want to participate must get an identification card through the Illinois Department of Public Health (IDPH) certifying that he/she suffers from one of more than thirty (30) qualifying illnesses. In addition, they must have a relationship with a treating physician, be finger printed, undergo a background check and pay a fee. As of early October 2014, approximately 6,300 patients started the application process and IDPH has received over 800 completed applications.
A physician who certifies a patient as having a qualified illness must have reasonable expertise in the condition. Patients who have a qualified illness[i] and are over the age of twenty-one (21) are able to purchase 2.5 ounces every two weeks but may apply for a waiver where a physician provides a substantial medical basis and has signed a “written statement asserting that, based on the patient’s medical history, in the physician’s professional judgment, 2.5 ounces is an insufficient adequate supply for a 14-day period to properly alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating condition”. 410 ILCS 130/10 (a)(2). Patients who are excluded include pediatric patients, those who are active duty law enforcement officers, those who drive a bus or have a commercial driver’s license and those who were convicted of certain “excluded offenses”.
The Medical Marijuana Program also sets forth numerous requirements that apply to the physician. A physician who certifies a debilitating medical condition must be currently licensed, in good standing and hold a controlled substance license under Article III of the Illinois Controlled Substance Act. The physician making a medical cannabis recommendation shall comply with generally accepted standards of medical practice and must physically examine the patient. This exam cannot be done via telemedicine. Physicians who certify a patient must provide a written certification that is dated and signed stating “(1) that in the physician’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition; (2) that the qualifying patient has a debilitating medical condition and specifying the debilitating medical condition the qualifying patient has; and (3) that the patient is under the physician’s care for the debilitating medical condition. A written certification shall be made only in a course of a bona fide physician-patient relationship, after the physician has completed an assessment of the qualifying patient’s medical history, reviewed relevant records related to the patient’s debilitating condition and conducted a physical exam”. 410 ILCS 130/10 (y). Veterans who receive treatment at the VA Hospital will have a bona fide physician/patient relationship with that VA physician if the patient was evaluated and treated for his or her debilitating medical condition at the VA Hospital.
The physician must also maintain a record keeping system for all patients he/she has recommended the use of medical cannabis. “These records shall be accessible to and subject to review by the Department of Public Health and Department of Financial and Professional Regulation upon request”. 410 ILCS 130/35 (a)(4).
The Act also legislates against anticipated or perceived conflicts on the part of the prescribing physician. Physicians cannot “accept, solicit or offer, any form of remuneration from or to a qualifying patient, primary caregiver, cultivation center or dispensing organization”. 410 ILCS 130/35 (b)(1). Physicians cannot offer a discount to qualifying patients who agree to use a particular primary caregiver or a dispensing organization for medical cannabis. Physicians cannot conduct personal physical exams of patients for purposes of diagnosing a debilitating medical condition where medical cannabis is sold or distributed or at the address of a principal officer or employee. Physicians may not “hold a direct or indirect economic interest in a cultivation center or dispensing organization if he or she recommends the use of medical cannabis to qualified patients or is in partnership or other fee or profit sharing relationship with a physician who recommends medical cannabis”. 410 ILCS 130/35 (b)(4). A physician cannot “serve on the board of directors or as an employee of a cultivation center or a dispensing organization”. 410 ILCS 130/35 (b)(5). Physicians cannot refer patients to a specific cultivation center, a dispensing organization, or a registered designated caregiver and cannot advertise in a cultivation center or a dispensing organization.
Physicians who participate in the program are not subject to arrest, prosecution, penalty, and will not be denied any rights or privileges including civil penalty or disciplinary action by a licensing board solely for providing written certifications for patients to use medical cannabis.
The Act also provides a confidentiality section relating to records received and kept by the Department of Public Health (IDPH) and other agencies. The agencies are bound by all federal privacy laws including the Health Insurance Portability and Accountability Act (HIPAA), and exempt from the Freedom of Information Act (FOIA). The records are “not subject to disclosure to any individual, public or private entity, except as necessary for authorized employees of the authorized agencies to perform official duties…” 410 ILCS 130/145(a). It does not appear that records such as applications, physician certifications and medical records would be turned over in the course of a medical malpractice case.
The Medical Marijuana Program is a work in progress and will likely require changes as issues arise. It is important for physicians to stay current on the requirements and to know which conditions qualify and what is necessary to certify a patient to participate in the program.
[i]”‘Debilitating medical condition’ mean one of more of the following: …
cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, including but not limited to arachnoiditis, Tarlov cysts, hydromyelia, syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury, traumatic brain injury and post-concussion syndrome, Multiple Sclerosis, Arnold-Chiari malformation and Syringomyelia, Spinocerebellar Ataxia (SCA), Parkinson’s, Tourette’s, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy, RSD (Complex Regional Pain Syndromes Type I), Causalgia, CRPS (Complex Regional Pain Syndromes Type II), Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropathy, Sjogren’s syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patella syndrome, residual limb pain, or the treatment of these conditions; (2) or any other debilitating medical condition or its treatment that is added by the Department of Public Health by rule as provided in Section 45″. 410 ILCS 130/10 (h)(1)(2) (2014).